Desiree Murillo v. City of Woodland; Ryan Piercy; Casey Sullivan; and Does 1 To 40

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

In this action, plaintiff alleges claims pursuant to 42 U.S.C. § 1983
and California state law against defendant City of Woodland ("the
City") and a former officer of the Woodland Police Department,
defendant Ryan Piercy, in connection with Piercy's allegedly
unconstitutional pat-down search of plaintiff during a traffic stop.
Only plaintiff's Section 1983 claims are at issue in the motions for
partial summary judgment presently before the court.*fn1
Briefly stated, plaintiff alleges that Piercy searched her in
violation of her constitutional rights, and did so in a sexually
aggressive and unconstitutional manner. Additionally, plaintiff
alleges that the City is
liable for the alleged violations of plaintiff's constitutional
rights.

Presently before the court is the City's Motion for Summary Adjudication filed pursuant to Federal Rule of Civil Procedure 56, which seeks the dismissal of plaintiff's Section 1983 claim or claims alleged against the City.*fn2 (Mot. for Summ. Adjudication, Dkt. No. 52.) Piercy filed a notice of joinder in the City's motion, which does not specify the claim or claims to which it is directed.*fn3 (See Joinder in Mot. for Summ. Adjudication, Dkt. No. 62.) Nevertheless, the court construes Piercy's joinder as seeking partial summary judgment as to plaintiff's first claim for relief, which is the only Section 1983 claim alleged against Piercy.

The court heard this matter on its law and motion calendar on May 11, 2011. (Minutes, Dkt. No. 81.) Attorney Carolee G. Kilduff appeared on behalf of the City, and attorney John A. Lavra appeared on behalf of Piercy. Attorney Jeffrey D. Janoff appeared on behalf of plaintiff.

The undersigned has fully considered the parties' submissions, oral arguments, and appropriate portions of the record in this case and, for the reasons that follow, grants the City's and Piercy's motions in part, and denies those motions in part. Specifically, the court grants partial summary judgment to the City and Piercy to the extent that plaintiff claims that Piercy: (1) stopped plaintiff's vehicle in violation of plaintiff's constitutional rights, (2) ordered plaintiff out of her vehicle in violation of plaintiff's constitutional rights, (3) used excessive force on plaintiff in violation of plaintiff's Fourth Amendment rights, and (4) violated plaintiff's substantive due process rights guaranteed by the Fourteenth Amendment. However, the court denies Piercy's motion for partial summary judgment to the extent that it challenges plaintiff's claims that: (a) Piercy unconstitutionally conducted a pat-down search of plaintiff under Terry v. Ohio, 392 U.S. 1, 21 (1968), without a proper legal basis to conduct the search at all, and (b) searched plaintiff in an unconstitutional manner. The court denies the City's motion to the extent that it challenges plaintiff's claim that the City is liable for Piercy's pat-down search of plaintiff under Terry, but grants partial summary judgment to the City to the extent that plaintiff alleges that the City is liable for the manner of the pat-down search itself.

I. BACKGROUND

A. Factual Background

1. Piercy's Training at the Butte College Police Academy and the Woodland Police Department*fn4

It is undisputed that the Woodland Police Department hired Piercy in June 2008. (City's Statement of Undisputed Facts ("City's SUF") ¶ 1; Pl.'s Statement of Disputed Facts ("Pl.'s SDF") ¶ 1.) It is also undisputed that prior to being hired by the Woodland Police Department, Piercy completed a training program at the Butte College Police Academy and obtained a certificate in basic Peace Officer Standards and Training. (City's SUF ¶ 2.) Piercy attended this training program for approximately six months, and Piercy finished tenth in his class.*fn5 (Id.) Plaintiff only disputes these facts on the grounds that training officers and other officers criticized Piercy's performance (Pl.'s SDF ¶ 2); plaintiff's response does not directly address the facts asserted by the City or create a genuine dispute of material fact.

While at the Butte College Police Academy, Piercy was taught to use
the palm of his hand for the majority of pat-down searches.*fn6
(City's SUF ¶ 3.) Piercy was taught to use the palm of his
hand in order to determine whether a person had a weapon. (City's SUF
¶ 4.) Plaintiff does not genuinely dispute these facts; she only
asserts that "[n]o written manual was ever produced on this issue."
(Pl.'s SDF ¶¶ 3-4.) There is no genuine factual dispute that Piercy
was taught that he should not put the palm of his hand across a
woman's chest; however, it is unclear whether that training was
provided by the Butte College Police Academy in addition to the
Woodland Police Academy. (See City's SUF ¶ 5; Pl.'s SDF ¶
5.)

Piercy completed orientation training and approximately 16 weeks of field training with the Woodland Police Department prior to his assignment to patrol. (City's SUF ¶ 6; Pl.'s SDF ¶ 6.) During this orientation and training, Piercy received training on how to perform pat-down searches. (City's SUF ¶ 7.) Officers with the Woodland Police Department are trained to use the back and blade of the hand when searching females' breast and buttock areas. (Id. ¶ 8.) "[W]hen an officer searches the area under the breasts, the blade section of the hand (fingers up, thumb against the body) sweeps along the bra line and the back of the hand is used on the buttocks." (Id.) Again, plaintiff only disputes these facts on the non-responsive ground that "[n]o written manual was ever produced on this issue." (Pl.'s SDF ¶¶ 7, 8.)

The record is relatively silent regarding the Woodland Police Department's policies or training addressing when a pat-down search should be conducted. In this vein, the City's statement of undisputed facts states: "For the safety of the Officer, the decision to do a pat down search during a traffic stop is at their discretion." (City's SUF ¶ 12.)

The City offers as an undisputed fact that "[d]uring training Piercy demonstrated competency in the area of officer tactics, including pat down searches," and relies on the declaration of Lieutenant Anthony Cucchi*fn7 in support of this fact. (City's SUF ¶ 10 (citing Cucchi Decl. ¶ 7).) Plaintiff disputes this fact on two grounds. First, plaintiff argues that "Cucchi was not [Piercy's Field Training Officer] and was not involved in [Piercy's] training so he has no personal knowledge of this fact." (Pl.'s SDF ¶ 10.) Second, plaintiff disputes this fact on the basis of the expert declaration of David A. Dusenbery, who was retained by plaintiff as a "police practices consultant and expert witness" and concluded upon review of the records provided to him that Piercy "should not have been hired by the Woodland Police Department and he should have been terminated during the field training program." (See Dusenbery Decl. at 1, 3, Exhibit D to Pl.'s Opp'n, Dkt. No. 64, Doc. No. 64-4.) The City replies that the fact regarding Piercy's competency remains undisputed because: (1) Lieutenant Cucchi was aware that Piercy demonstrated competence or else Piercy would not have been passed through the Field Training Program; (2) Lieutenant Cucchi was aware of Piercy's competence from reviewing unidentified "training and personnel documents produced in this case"; and (3) Dusenbery's conclusion is "irrelevant argument rather than evidentiary fact and is based at least partially if not completely on inadmissible hearsay and on speculation with the benefit of hindsight. Fed. R. Civ. P. 56(e); Fed. R. Evid. 602, 805." (City's Reply Statement of Undisputed Facts ¶ 10, Dkt. No. 79.)

In regards to Dusenbery's expert declaration, the court finds that Dusenbery's declaration is of such a conclusory nature, offering no explanation or bases for the opinions offered, that it is given no material weight in the context of the City's and Piercy's motions for partial summary judgment. See Clouthier v. County of Contra Costa, 591 F.3d 1232, 1252 (9th Cir. 2010) (finding, in the context of a Section 1983 action, that no material evidence on issue of County's knowledge or the obviousness of a problem despite expert declaration on issue because the expert's opinions were conclusory) (citing Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) ("Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.")).

In regards to Lieutenant Cucchi's statement, plaintiff has created a legitimate factual dispute. Lieutenant Cucchi has no personal knowledge of Piercy's competence in performing pat-down searches during field training, and the City has not cited any evidence that would support substantiate Lieutenant Cucchi's personal knowledge in this regard. Accordingly, the court concludes that a genuine dispute of fact exists as to Piercy's competency in performing pat-down searches during field training. Whether this factual dispute is material is a separate question addressed below, in the portion of this order addressing the City's potential Monell liability.

2. The Traffic Stop and Piercy's Pat-Down Search of Plaintiff It is undisputed that Piercy was a police officer employed by the City's police department, the Woodland Police Department, at the time of the traffic stop at issue in this case. (See City's SUF ¶¶ 1, 9, 13; Pl.'s SDF ¶¶ 1, 9, 13.) During the events in question, Piercy was assigned to a patrol in a solo unit on the "graveyard shift." (See City's SUF ¶ 9; Pl.'s SDF ¶ 9.)

On February 1, 2009, Piercy conducted a traffic stop involving plaintiff. (City's SUF ¶ 13; Pl.'s SDF ¶ 13.) Piercy's patrol vehicle is equipped with a camera mounted to the windshield, and that camera visually recorded the traffic stop. The City lodged the recording with the court. (See Cucchi Decl. ¶ 11 & Ex. A, Dkt. No. 55; Notice of Lodging CD, Dkt. No. 57.) Notably, however, the recording does not contain any of the relevant audio from the traffic stop, such as what was said between plaintiff and Piercy during the stop, because Piercy's civilian radio was playing loud music during the entire traffic stop.

Plaintiff testified at her deposition that on the night in question, she had been at a bar with her aunt and had consumed one sip of beer before she learned that her daughter was at home with plaintiff's grandmother and was crying, which prompted plaintiff to leave the bar. (See Murillo Depo. at 67:12-68:15.) Plaintiff testified that she had arrived at the bar at around 11:45 p.m. or 11:50 p.m., and left after approximately ten to fifteen minutes. (Id.) She further testified that she noticed a patrol vehicle, which turned out to be Peircy's patrol vehicle, driving down a main street when she walked out of the bar. (Id. at 69:19-70:7.)

The video recording begins as Piercy makes a left turn at an intersection with a traffic signal, and shows Piercy following plaintiff's vehicle. (See Video at 00:04:12.) Piercy turned on his overhead lights after plaintiff made a right turn at an intersection with a stop sign. (Id. at 00:04:30.) According to the time stamp on the video recording, Piercy stopped plaintiff's vehicle at approximately 12:04 a.m. (Video at 00:04:40; Cucchi Decl. ¶ 10.) Notably, although the City's statement of undisputed facts states that Piercy stopped plaintiff "after observing [plaintiff] make a traffic violation" and relies on the declaration of Lieutenant Cucchi to support that fact, Lieutenant Cucchi's declaration only states that "Piercy conducted a traffic stop on Desiree Murillo," with no mention of the basis for the stop. (Compare City's SUF ¶ 13, with Cucchi Decl. ¶ 10.) However, Piercy testified that he stopped plaintiff for passing over the limit line when plaintiff stopped at the stop sign and made a right turn, and plaintiff testified that this was the basis of the traffic stop that Piercy provided to her.*fn8 (Piercy Depo. at 7:23-8:1; Murillo Depo. at 105:9-14, 244:15-22.) Neither party disputed in their papers or at the hearing that this was the basis for the traffic stop.*fn9

After stopping plaintiff's vehicle, Piercy stood at plaintiff's driver's side window for approximately 30 seconds, speaking to plaintiff and shining his flashlight into the vehicle. (Video at 00:05:09-00:05:45.) Plaintiff testified that Piercy asked her where she was coming from, and that she responded that she was coming from a bar and was going to her grandmother's home because her daughter was crying. (Murillo Depo. at 77:1-9.) Plaintiff also testified that Piercy asked her whether she had been drinking, and that she responded that she had consumed one sip of beer. (Id. at 77:9-10.) Piercy testified that plaintiff "admitted to drinking" alcohol, but could not recall the specific response provided by plaintiff. (Piercy Depo. at 7:18, 11:24-12:10.)

Piercy then ordered plaintiff to exit the vehicle (City's SUF ¶ 16; Pl.'s SDF ¶ 16), and move to the sidewalk (Video at 00:05:52). Piercy testified that he asked plaintiff to exit the vehicle because she had admitted drinking alcohol. (Piercy Depo. at 79:14-18.)

The parties agree, and the video recording substantiates, that plaintiff was wearing jeans and a sweater; plaintiff reasonably characterizes her jeans as having been "tight," in reliance on the video recording and Lieutenant Cucchi's deposition. (Pl.'s SDF ¶ 17; Cucchi Depo. at 77:5-7.)

After plaintiff handed Piercy what appears to be a driver's license, Piercy ordered plaintiff to turn around so that she was facing away from him. (Video at 00:05:58.) Plaintiff testified that Piercy told her he was going to search her. (Murillo Depo. at 85:4-10.) Neither party contends that plaintiff consented to a search of her person. Piercy then ordered plaintiff to spread her feet apart, clasp her hands, and place them over her head, and Piercy placed his hand on plaintiff's clasped hands. (Video at 00:06:00; see also Murillo Depo. at 85:8-20; Piercy Depo. at 113:8-13.)

Piercy then conducted the pat-down search of plaintiff that is at the center of this dispute. (City's SUF ¶ 18; Pl.'s SDF ¶ 18; Video at 00:06:02-00:06:15.) Piercy appears to use the palm of his hand while conducting the entire pat-down search of plaintiff. (Video at 00:06:02-00:06:15.) The video recording shows that Piercy first ran the palm of his hand along plaintiff's right hip and down the outside of plaintiff's right leg to about plaintiff's knee. The recording then appears to show that Piercy then ran the palm of his hand upward along plaintiff's right, inner thigh from the back of plaintiff's knee and into her crotch and vaginal area, pushed plaintiff's right buttock upward with the palm of his hand, and ran the palm of his hand over part of the right, rear pocket of plaintiff's jeans. Piercy repeated this sequence on plaintiff's left hip, leg, inner thigh, crotch, and buttock.

Plaintiff described Piercy's use of his hands as "rubbing," not patting, that Piercy used force, and that Piercy "pushed [her] butt cheek up and felt [her] butt," but that Piercy's hand never stopped moving to grab plaintiff's buttocks. (See Murillo Depo. at 90:12-91:8, 92:6-21.) She further testified that the pressure of Piercy's hand increased when Piercy was touching her buttocks. (Id. at 95:7-13.) Plaintiff also testified that Piercy's thumb touched her vaginal area and that her internal reaction was: "What the hell is this guy doing to me?" (Id. at 92:24-93:10.)

While reviewing the video recording of the traffic stop and pat-down search during his deposition, however, Piercy disagreed with plaintiff's counsel's characterizations that Piercy placed the palm of his hand between plaintiff's legs and that Piercy used force to lift plaintiff's buttocks. (See Piercy Depo. at 114:2-116:17.)

Piercy then reached around plaintiff's waist and began searching plaintiff's stomach and chest areas; plaintiff reacted by turning around, facing Piercy, and saying something. (Video at 00:06:07-00:06:09.) The video recording does not clearly show the manner in which Piercy searched plaintiff's stomach and chest areas. Insofar as the search of her stomach and breasts was concerned, plaintiff testified at her deposition as follows:

Q. After he did the left leg, what portion of his body -- or your body did he next touch?

A. Then he touched my breast, and then he felt my stomach. And after he rubbed my stomach inappropriately, that's when I turned around and told him that I didn't feel that he was searching me the correct way and that I was really uncomfortable and that I didn't think that he should be touching me that way.

(Murillo Depo. at 95:14-21.) She further testified:

Q. Where on your breast did his left hand touch?

A. The front of my breast, both breasts. He ran his hand over both of my breasts.

Q. Did he ever stop the movement of his hand?

A. No.

Q. Was his hand open or could you describe the position of his hand?

A. His hand was open and it was the palm of his hand.

Q. Did he ever press on your breasts?

A. Yes.

Q. Did he ever grope your breasts?

A. No. . . .

A. He felt them.

Q. Did he ever grope your breasts?

A. What do you mean by "grope"? Like did he squeeze them?

Q. Did he ever grab them?

A. No.

Q. . . . And your testimony is he pressed on your breasts?

A. Yes.

Q. And what portion of your body did he next touch?

A. My stomach area.

Q. Will you describe how he did that?

A. He ran his hand kind of in a wavelike position across my stomach, like he waved his hand across like my stomach, and that's when I turned around and told him that I didn't think that ...

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